Oyinlola, Adoke and MTN judgement

It has been alleged that MTN concealed evidence that would have nailed the former President of the Court of Appeal, Justice Ayo Salami, over allegation that he corruptly influenced the decision of election appeal tribunal that nullified the election of Oyinlola as governor of Osun state. I do not want to dabble into the legal […]

It has been alleged that MTN concealed evidence that would have nailed the former President of the Court of Appeal, Justice Ayo Salami, over allegation that he corruptly influenced the decision of election appeal tribunal that nullified the election of Oyinlola as governor of Osun state.
I do not want to dabble into the legal implications of the issues for determination by the judiciary. I just want to intervene on the false charge against the person of the Attorney General by some busy-body interlopers who have called him names for doing what he considered to be the best interest of the public.
 Specifically, the former governor Oyinlola instituted a case in the court alleging that the nation’s chief law officer was wrong  not to have prosecuted the telecom giant MTN for not reportedly providing the National Judicial Council with the relevant information against the suspended but now retired President of the Court of Appeal of Nigeria. He also alleged that Adoke had personal interest in the South African owned telecommunication firm MTN and that it was this vested interest that made him to shield MTN from public prosecution. According to him, the nation’s chief law officer misused and misapplied his powers of nolle prosequi in not instituting the case against the telecommunication firm.
When I waded into the matter by publishing some articles to defend the integrity and good name of the Attorney General and Minister of Justice, who also holds one of the highest national honours which he won on merit-Commander of the Order of the Niger (CON) based on my objective and balanced knowledge of the man, the political camp of the former governor of Osun state who is understandably embittered that he lost out through the Election Appeal Tribunal, did not take my intervention lightly. But some persons masquerading as civil society leaders attacked me and called me unprintable names, which I chose to ignore. I left them with their ranting believing that time is the greatest determinant of what is right or wrong. 48 hours ago the Federal High Court in Abuja returned a favourable verdict to the Attorney General supporting his constitutional decision not to initiate the judicial proceedings against MTN.
The former governor lost  in his bid to have  MTN prosecuted for allegedly suppressing evidence as the Federal High Court in Abuja dismissed his suit.
As most national newspapers reported in their news pages,  Oyinlola had last year filed an application for judicial review for an order of mandamus to compel the Minister of Justice and Attorney General of the Federation (AGF), Mohammed Adoke (SAN) to initiate criminal prosecution against MTN for allegedly suppressing evidence.
In his judgment, Justice Adeniyi Ademola held that although Section 174 of the Constitution provides for the granting of order of mandamus against a public officer to compel him/her to perform his public responsibility, the section equally provided the Attorney General with the discretion to initiate public prosecution.
The judge held that granting order of mandamus under Section 174 of the Constitution, which Oyinlola relied on in his application, is discretionary in nature, and that the court has the discretion to grant or refuse it.
He further held that for order of mandamus to be issued on a public officer, there must exists a public duty and not one in which they have discretion to perform, and that it must be a duty that such public officer must perform, but which he refused to perform.
Justice Ademola held that Section 174 grants the 1st respondent discretionary powers and not duties to initiate public prosecution.  He further held that, as against the contention by the applicant (Oyinlola), Section 174 preserves the discretion of the AGF.
“The 1st respondent (AGF) in exercising his discretion under Section 174 of the Constitution cannot be questioned by anyone, not even the person of the President of the Federal Republic of Nigeria,” the judge said. He added that if the AGF abuses his position, he could only be checked through public opinion or reassigned to other offices or removed from office by the President.
On the plaintiff’s argument that the AGF  made a political appointee, in the person of Simon Egede, as an acting Director of Public Prosecution (DPP), the  judge held that , if the court was to vitiate the letters written by Egede, on the ground that he was not qualified to act in that capacity, “it then means the applicant’s application for order of mandamus will have no leg to stand on, because it would have become statute barred and would have been liable to be dismissed in line with the provision of Order 34 Rule 4 of the court’s Civil Procedure Rules 2009.
 “In conclusion, this court cannot issue an order of mandamus to compel the 1st defendant to initiate prosecution against the 2nd defendant for alleged attempt to suppress evidence,” the judge averred.
On the plaintiff’s argument that the AGF could even direct the police to prosecute the 2nd defendant (MTN), the judge held that, even if the police take it upon itself to prosecute MTN, the 1st respondent has the powers, under Section 174 to discontinue such action, powers which the police do not have.
 “Having taken into consideration the public interest, interest of justice and the right of the AGF to prevent the abuse of legal process and that in the exercise of his powers under Section 174 of the Constitution, the 1st respondent has discretion; accordingly, order of mandamus cannot be issued against the 1st respondent. The application fails and it is hereby dismissed.”
Interestingly, several hours after he scored this major legal milestone, Adoke has not considered it imperative to begin widespread media celebration. He still maintains his sobriety and candour by not even issuing a press statement from the office of his press secretary. Such is the attribute of a great man who believes in giving his best to his society.
Emmanuel Onwubiko, Head; Human Rights Writers Association of Nigeria and [email protected]; www.huriwa.org.